Phipps v. Sheriff of Cook County

DERRICK PHIPPS, ET AL., PLAINTIFF,v.SHERIFF OF COOK COUNTY, AND COOK COUNTY, ILLINOIS, DEFENDANTS.

The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

In this class action suit, paraplegic and partially-paralyzed pre-trial detainees currently and formerly housed at the Cook County Department of Corrections ("CCDC" or "the Prison") allege that the Sheriff of Cook County ("the Sheriff"), and Cook County, Illinois ("the County") (together, "defendants"), have violated, inter alia, section 202 of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132. In June 2009, all of the parties filed cross-motions for summary judgment. On November 25, 2009, I issued a memorandum opinion and order denying all of the parties' motions. Phipps v. Sheriff of Cook County, No. 07 C 3889, 2009 WL 4146391 (N.D. Ill. Nov. 25, 2009) ("the November 25 opinion" or "the opinion"). The defendants subsequently filed this motion pursuant Rule 59(e) of the Federal Rules of Civil Procedure, seeking reconsideration of the decision. For the reasons explained below, the motion is denied.

Here, the defendants' motion for reconsideration contends that the November 25 opinion erred in three ways: (1) by concluding that the record contained sufficient evidence from which a jury could find that the defendants intentionally discriminated against the plaintiffs; (2) by holding that disputed questions of material fact existed as to whether the defendants failed to reasonably accommodate the plaintiffs' disabilities; and (3) by declining to grant the defendants summary judgment motion with respect to the plaintiffs' claims concerning access to the prison's electronic monitoring and drug rehabilitation programs.

Despite their protestations to the contrary, the defendants' motion consists almost entirely of arguments presented -- and rejected -- in their original summary judgment motions. Their motion to reconsider furnishes no reason for revisiting those arguments here. However, the motion does succeed in raising a small number of novel issues. While none of these ultimately affects the reasoning or result of the November 25 opinion, I briefly address them here in the interest of clarification and completeness.

First, as part of their argument that I erred in declining to grant them summary judgment with respect to the issue of intentional discrimination, the defendants request that the case be certified for interlocutory review. Here, the defendants seize upon the opinion's passing observation that different Circuits have adopted different formulations of the "intentional discrimination" standard in ADA cases. In particular, the opinion noted that while some Courts of Appeals have used a "deliberate indifference" standard, others have employed a "discriminatory animus" standard. The opinion also noted that the Seventh Circuit had yet to address the specific question of the how the notion of intentional discrimination should be understood for purposes of the ADA. The defendants therefore urge that the case be certified for interlocutory review so that the Seventh Circuit might issue a definitive ruling on the matter.

The defendants' request is denied. "Interlocutory appeal is appropriate when (1) the appeal presents a question of law; (2) it is controlling; (3) it is contestable; (4) its resolution will expedite the resolution of the litigation, and (5) the petition to appeal is filed in the district court within a reasonable amount of time after entry of the opinion sought to be appealed." Boim v. Quranic Literacy Inst. and Holy Land Foundation For Relief And Development, 291 F.3d 1000, 1007 (7th Cir. 2002). The defendants have not even come close to showing that these criteria are met in this case. They fail to provide even the most cursory discussion of the deliberate indifference and discriminatory animus standards. Nor do they explain in what sense the issue represents a contestable or controlling issue of law. The defendants make no attempt to assess the relative merits of the different standards. Indeed, the defendants make no attempt even to determine whether, in the ADA context, there is a meaningful distinction between the two standards, or whether the difference between them is merely verbal.

Moreover, this issue was never raised in the parties' briefing on the summary judgment motion, and the defendants offer no explanation for their failure to raise the issue earlier. Instead, the defendants insisted throughout that deliberate indifference was the applicable standard. The November 2005 opinion simply assumed without deciding that the defendants' standard applied, and concluded that on the defendants' own standard, they were not entitled to summary judgment on the issue of intentional discrimination.*fn1 See, e.g., Harris v. Giant Eagle Inc., 133 Fed. App'x. 288, 292 n.1 (6th Cir. 2005) (assuming without deciding that plaintiff's federal claim was timely because neither party raised the issue); Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 125 (2d Cir. 2002) (Because both parties assumed that the law of Puerto Rico rather than New York governed, and because neither side identified any pertinent difference between the laws of the two jurisdictions, the court would likewise assume without deciding that the law of Puerto Rico applied); Kaiser Foundation Health Plan of Mid-Atlantic States v. Clary & Moore, P.C., 123 F.3d 201, 204 (4th Cir. 1997) (because neither party questioned the applicability of Virginia law, the court would assume without deciding that Virginia law applied).

The defendants' second contention -- regarding the defendants' failure to provide the plaintiffs with reasonable accommodations -was already largely covered in the original summary judgment motion. In the motion to reconsider, the defendants argue with particular vigor that the accommodations were never requested. I disagree. At the very least, the record is unclear on this point. In any event, however, the defendants are wrong in assuming that it was necessary for the plaintiffs to have requested the specific accommodations in question. Strictly speaking, the ADA embodies no such requirement. Rather, where "a disabled individual's need for an accommodation is obvious, the individual's failure to expressly 'request' one is not fatal to the ADA claim." Robertson v. Las Animas County Sheriff's Dept., 500 F.3d 1185, 1197 (10th Cir. 2007); Kiman v. New Hampshire Dept. of Corrs., 451 F.3d 274, 283 (1st Cir. 2006) ("[T]he ADA's reasonable accommodation requirement usually does not apply unless 'triggered by a request.' This is because a person's disability and concomitant need for accommodation are not always known... until the person requests an accommodation. However, sometimes the person's need for an accommodation will be obvious; and in such cases, different rules may apply.") (citations, quotation marks, and brackets omitted). Thus, the plaintiffs' alleged failure to request accommodations from the defendants provides no basis for reconsidering the November 25 opinion's conclusions.

In their final argument for reconsideration, the defendants maintain that the November 25 opinion erred in failing to grant them summary judgment with respect to the claim that certain of the plaintiffs were wrongly excluded from electronic monitoring and drug rehabilitation programs run by the CCDC. The defendants are perhaps justified in pointing out that opinion's discussion of this issue is somewhat truncated. In particular, the opinion addresses only whether the plaintiffs were entitled to summary judgment on the claims regarding these programs. Having denied the plaintiffs' motion on this point, the opinion did not take the additional step of considering the defendants' cross-motion for summary judgment concerning these programs. The omission is ultimately of no moment, however, because the defendants' arguments for summary judgment on this point are without merit.

The claims relating to the prison's electronic monitoring program chiefly involve plaintiffs Phipps and Grant. Against their contention that they were excluded from the program because of their disabilities, the defendants insist that Phipps and Grant were excluded because of their criminal histories. Specifically, the defendants claim that individuals who have been charged with, or convicted of, certain crimes are barred by prison regulations from participating in the electronic monitoring program. Quite simply, the defendants' position is not borne out by the record.

In support of their argument, the defendants rely almost exclusively on a single exhibit consisting of two memoranda from the Cook County Sheriff's Office. See Defs.' Ex. 14. These memos list the various charges and offenses that can result in exclusion from the electronic monitoring program.*fn2 The defendants first argue that Phipps and Grant were denied access to the program because both had been charged with possession of a controlled substance. However, neither of the memos state that being charged with (or convicted for) possession of a controlled substance will result in exclusion from the program. Rather, they say that "[a]ny narcotic charges other than Marijuana involving more than 100 grams disqualify the accused from EM [electronic monitoring]." The defendants do not point to any evidence showing that this proscription applies to Grant. The portion of his deposition cited by the defendants says merely that Grant had been incarcerated for eight months because his son "made some allegations about drugs and guns." Def.'s Ex. 3, Grant Dep. at 8:12-9:8. Neither the drug nor the quantity of the drug in question is specified in the cited portion of the deposition.

The record is also unclear as to whether the exclusion applies to Phipps. Although Phipps had previously been charged with felony drug possession, the charge for which he was incarcerated during the time in question was for probation violation. Defs.' Ex 4, Phipps Dep. at 9:1-10:22. The defendants point to nothing in the memos suggesting that having been charged with drug possession at some prior ...

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